The Mail & Guardian understands former Constitutional Court and Appeal Court judge Johann Kriegler persuaded Freedom Under Law to take on the case after the National Prosecuting Authority (NPA) withdrew fraud and murder charges against Mdluli.

Mdluli had been accused of being involved in the 1999 murder of Oupa Ramogibe, who had become romantically involved with his girlfriend, but these charges were withdrawn and a judicial inquest into the case is now in progress. He was also accused by the Hawks of plundering the crime intelligence secret services fund, but the NPA withdrew those charges too.

The matter was escalated after senior state prosecutor Glynnis Breytenbach – who had been pushing for Mdluli to be prosecuted for fraud – was suspended earlier this month.

A similar interdict is being launched against Police Minister Nathi Mthethwa in an effort to prevent him from assigning any function or duty to Mdluli before the review is heard in court.

The application will be heard on June 5 in the North Gauteng High Court in Pretoria. This deadline gives Mdluli an opportunity to respond, the M&G was told.

An early date is being sought for the hearing of the judicial review.

Political frayRespected academic, medical doctor and anti-apartheid activist Mamphela Ramphele has entered the political fray, putting her name to Freedom Under Law’s application.

“Dr Ramphele is the deponent to the [Freedom Under Law]‘s founding affidavit.
She is a member of Freedom Under Law’s international advisory board, well known for her life-long commitment as a social activist,” the organisation said in a statement.

“Detained and subjected to banning orders in the 1970s, she went on to become a co-author of the Second Carnegie Report on Poverty in South Africa, vice-chancellor of the University of Cape Town and vice-president of the World Bank in Washington, DC.”

Lindela Mashego, national police spokesperson, could not be reached for comment. Mdluli’s lawyer, Ike Motloung, declined to comment.

Zweli Mnisi, spokesperson for Mthethwa, said he was aware of the urgent application against Mdluli but said the interdict against Mthethwa had not been received.

“The department has noted the urgent application,” he said. “Our legal team is looking at it.”

Criminal chargesFreedom Under Law is a non-profit company registered in South Africa and Switzerland in 2009. Its central objectives are promoting, protecting and advancing the understanding of and respect for the rule of law.

In her affidavit, Ramphele draws on an official report, as well as affidavits made by two senior police officers who investigated criminal charges against Mdluli.

The organisation is asking for a number of decisions to be reviewed:

The decision by the head of the Specialised Commercial Crime Unit to withdraw charges of fraud, corruption and money-laundering against Mdluli on December 6 last year;

The decision by the acting national director of public prosecutions on February 2012 to withdraw criminal charges including murder, kidnapping and defeating the ends of justice;

The decision by the national commissioner of the South African Police Service on February 29 2012 withdrawing criminal charges, including murder, kidnapping and defeating the ends of justice;

The decision by the national commissioner, SAPS, on February 29 this year, withdrawing disciplinary proceedings against Mdluli;

The decision by the national police commissioner on March 31 2012 to reinstate Mdluli as head of crime intelligence.

‘Lack of accountability’The way in which Mdluli has been dealt with reflects an “extraordinary degree of a lack of accountability and a breach of a culture of justification under the Constitution which our courts have sought to impose on those who exercise public power,” said Ramphele in her court papers.

“Patently this does not resolve the problem caused by General Mdluli’s reinstatement and his far-reaching claims of conspiracy,” wrote Ramphele. “By his conduct, the minister accepted that there was a need to act but has not initiated suspension proceedings or any other measure which would remove General Mdluli from active daily service in the SAPS.”

Mdluli’s treatment was “partial and select”, said Ramphele.

Freedom Under Law said the purpose of proceedings was to remedy the series of unlawful and unconstitutional decisions and to give effect to the rule of law.